BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
HEALTHCARE SERVICES GROUP, INC.
and
SEIU, LOCAL 150
Case 1
No. 66674
A-6272
Appearances:
Ms. Andrea Hoeschen, Esq. Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman
Goldberg, 1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee,
Wisconsin 53212, on behalf of Local 150.
Mr. Adam Konig, Healthcare Services Group, Inc., 15 Spinning Wheel Drive,
Suite 436, Hinsdale, Illinois 60521, on behalf of the Company.
ARBITRATION AWARD
On June 7, 2007 the Undersigned heard the instant grievance and on that date
she issued an oral Bench Award regarding procedural issues which she later confirmed
in writing on June 12, 2007, finding inter alia, the grievance was timely filed. On
June 7th, the Undersigned also heard the parties’ evidence and arguments on the merits
of the case. By August 7, 2007, the parties submitted their briefs on the merits and the
record herein was closed.
ISSUES
The parties stipulated and agreed that the Undersigned should decide the
following issues on the merits hereof:
1) Did Healthcare Services Group, Inc., pay Kim Pelot the
correct wage for housekeeping duties under the collective bargaining
agreement?
2) If not, what is the appropriate remedy?
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RELEVANT CONTRACT PROVISIONS:
ARTICLE 15 – PROMOTIONS, TRANSFERS, DEMOTIONS AND JOB POSTINGS
15.1
An employee promoted into a higher classification will be placed
on the scale step of the new classification that gives the employee
a raise. An employee promoted into a higher classification will
have a thirty (30) day trial period on the new job. If, in the
opinion of either the Employer or the employee, s/he is not
successful in the new job, s/he will be returned to her/his former
position with her/his former seniority benefits and wages.
15.2
An employee who is transferred or promoted into another
classification will not lose any seniority, benefits or pay because
of the transfer. The employee’s seniority date shall be the last
hire date for purposes of layoff or rehiring. But in choice of
scheduling vacation, holidays and priority for additional hours of
work as decided and made available by management up to a
regular full-time schedule, the employee’s seniority priority shall
be the date of starting in the new classification.
15.3
If an employee requests a demotion or transfer to a lower
classification and receives the new position, s/he will be placed in
the tenure step in the new classification based upon her/his
seniority in her/his former classification. The employee will
retain all previously accrued seniority and fringe benefits.
15.4
Job openings will be posted for five (5) calendar days to exclude
Saturdays, Sundays and holidays. This clause shall not be
construed to prevent the Employer from filling openings with
outside applicants after the five (5) day calendar period. The first
day of job posting will be that day in which the job is posted
before 12 pm any posting after 12 pm day one will be considered
the following day.
15.5
Each job posting will contain a brief job description, hours per
pay period, shift and space to sign up for the positions. Each
posting will outline only one job posting.
15.6
Present employees who are qualified shall be permitted to bid on
job openings. Seniority, ability, qualifications, and relevant
personnel files shall be considered by the Employer. Where all
else is equal, seniority shall prevail. If during the trial period,
either the Employer or the employee determines the employee is
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not capable of performing the new job, the employer will make
every attempt to return the employee back to their original
position schedule and shift. Trial period in a new position shall
be thirty (30) calendar days unless the Employer, employee and
the Union mutually agree to an extension.
15.7
The Union Coordinator will, upon request, be provided a copy of
all job postings, within a reasonable period of time, not to exceed
three (3) days.
ARTICLE 28 – RATES OF PAY
28.1
The Wage Schedule which is attached hereto and by reference is
made a part hereof, and the manner of application therein
provided, shall prevail during the term of this Agreement, and the
hourly rate to be paid any employee covered hereunder shall be
determined by such schedule.
...
28.3
No employee shall perform two (2) jobs at the same time. To
provide forty (40) hours a week, employees may divide their time
between two classifications; however, each employee shall
receive pay for the highest wage scale of the jobs being
performed.
28.4
No employee shall receive a rate of pay less than the rate for the
classification or position for which s/he was hired during the term
of this Agreement.
EXHIBIT “A” – WAGE SCHEDULE
1. Effective May 1, 2005 – All employees hired before May 1, 2005
will transition to seven and one half (7.50) hour per day work
schedule with wage adjustment. Adjustment will reflect same pay for
7.50 hours as for current eight (8) hours of work.
2. Effective May 1, 2005, All employees hired before May 1, 2005 will
be grandfathered in a current wages with adjustments.
3. All Medication aides will receive a (sic) one-dollar ($1.00) per hour
above their CNA wage.
4. Employees hired on or after January 1, 2004 who work sixteen (16)
but less than thirty (30) hours per week will receive a $0.20 per hour
premium
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5. Effective January 1, 2004, employees who have completed five (5)
years of service shall earn an additional $0.20 per hour; ten (10)
years of service an additional $0.23 per hour; fifteen (15) years of
service an additional $0.25 per hour; and twenty (20) years of service
an additional $0.27 per hour. Current employees receive one (1)
incremental longevity pay increase on conversion applicable to their
years of service as of January 1, 2004.
Wage Scale as of May 1, 2005
C.N.A
Cooks
Dietary aide
Hskg./Laundry
Maintenance
Start
$10.70
$10.00
$ 9.20
$10.65
$10.00
6 months
$10.90
$10.20
$ 9.35
1 year
$11.05
$10.35
$ 9.50
$10.20
$10.35
MEMORANDUM OF AGREEMENT
It is hereby agreed by and between HEALTHCARE SERVICES
GROUP, INC. (hereinafter the “Employer”) and SERVICE
EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC,
Local 150 (hereinafter the “Union”), as follows:
The Employer and Union agree to be bound by all terms and conditions
of the collective bargaining agreement currently in effect between the
Union and Strawberry Lane for Housekeeping and Laundry employees
employed by the Employer at this location with the exceptions to change
the starting rate to $9.20 and to follow the wage scale outlined in the
contract with Strawberry Lane, for any and all new hires from the date
of this agreement, also excluding 401K and tuition reimbursement.
This agreement shall be in full force and effect until the end of the
current contract. The Employer and the Union agree to jointly enter into
discussions relative to a renewal of this Agreement no later than the
ninetieth (90th) day immediately preceding the termination of this
Agreement.
...
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BACKGROUND
Service Employees Local 150 (Union) has represented the CNA, housekeeping
and laundry at the Strawberry Lane Medical Center for the past 20 years. In 2003,
Strawberry Lane (SL), owned and operated by North Point Senior Services (NPSS),
decided to subcontract the housekeeping and laundry services at SL to a separate entity,
Healthcare Services Group, Inc. (HCS). Local 150 did not object to SL subcontracting
with HCS because, as part of the agreement between NPSS and HCS, HCS agreed to
sign the above-quoted Memorandum of Agreement (MOA), binding it to the terms of
the 2005-08 labor agreement between SL and the Union.
The Grievant, Kim Pelot, has been employed at SL as a CNA working 15 hours
per pay period for the past 5 years. 1 In the Fall of 2006, Pelot signed a posting at SL
for a housekeeping/laundry position in order to get more work hours. Thereafter, Pelot
was interviewed by the on-site account manager for HCS at SL, Patrick Meyer. At the
interview, and when he later hired her as a housekeeper/laundry employee, Meyer
explained to Pelot that HCS was a separate entity from the owner/operator of SL, North
Point Senior Services which had been hired by NPSS to perform laundry and
housekeeping services at SL; and that Pelot would have to go through a separate
orientation process for HCS when hired by HCS. Meyer also told Pelot the starting
hourly rate for the offered position was $9.20 per hour. Pelot neither questioned nor
objected to the $9.20 hourly rate for the position.
On October 9, 2006, Pelot received the housekeeping/laundry position with
HCS. All SL employees are paid biweekly. After October 9th Pelot received two
paychecks - - one from NPSS for her CNA work and a separate one from HCS for her
housekeeping/laundry work. Pelot had received at least two paychecks (which, again,
she did not question) when Union Steward Kim Schauer noticed Pelot had signed the
posting for the housekeeping/laundry position. Schauer then asked Pelot about her pay
as a housekeeper, whether she was receiving her CNA rate for the HCS housekeeper
job. Pelot responded that she was not aware she should be receiving the higher CNA
rate for her housekeeper work. Schauer said Pelot should be making the CNA rate
under the contract and asked Pelot if she wanted to file a grievance. 3 The instant
grievance was then filed.
2
1
Pelot stated herein that her employer in her CNA position is NPSS.
Pelot stated herein that she understood that her employer for the housekeeping/laundry position was
HCS.
2
3
Schauer stated herein that she does not recognize that there is any difference between NPSS and HCS.
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HCS Account Manager Meyer stated herein that HCS signed the Memorandum
of Agreement (Joint Exh. 2) as a part of the deal it made with NPSS to perform
housekeeping/laundry services at SL and that he is aware the MOA bound HCS to
abide by the effective labor agreement between SL and the Union. However, Meyer
stated that Pelot was a new hire with HCS, which is a separate entity from NPSS; she
was not taken by HCS on a transfer, promotion or a change of position, and that HCS
does not employ CNA’s. Meyer stated that at the time of the instant hearing, Pelot was
being paid $9.38 per hour and that her pay, benefits and seniority began as of her date
of hire with HCS. Finally, Meyer acknowledged that when HCS took over supplying
housekeeping/laundry services at SL, as part of its agreement to provide housekeeping/
laundry services at SL, it took several former Housekeeping/laundry employees, with
their prior employment seniority in their prior positions, who had been hired before
HCS became involved at SL; that it is not possible to transfer from NPSS to HCS – one
must be hired by each – because they are separate employees; and that he (Meyer) has
nothing to do with NPSS, or the positions they cover.
POSITIONS OF THE PARTIES
The Union:
The Union asserted that Article 28 is clear – that employees have the option of
dividing their time between two classifications and if they do, they “shall” be paid “for
the highest wage scale of the jobs being performed.” Because the language is clear, the
Union urged that the Arbitrator needs not interpret the contract. The Union noted that
in one prior case, that of Amanda Calhoun, HCS agreed to pay Calhoun her CNA rate
for housekeeper work after Union Steward Schauer complained in Calhoun’s behalf,
and that this prior case supports the Union’s arguments herein.
In this case, HCS has raised only two defenses to the grievance: 1) that Pelot
was hired by HCS (as a new hire) not as an SL employee; 2) that Pelot only took the
housekeeper position to add to her CNA hours and pay. Regarding the first defense,
the Union queried, if the labor contract does not apply to Pelot because she is an HCS
employee, what was the point of agreeing to the MOA. And if the MOA does not
apply in this case, it has no meaning and nothing governs the terms and conditions of
housekeeper and laundry employees at SL. Such a result would be illogical,
impractical and contrary to the clear language of the MOA.
Regarding the second defense, the Union urged that it is irrelevant; that the
parties could have agreed upon a different method, but here, the parties clearly agreed
that employees should be able to decide to split their work in two classifications and
then make the higher pay rate for all work done. Other options were not used by the
parties, such as when employees are involuntarily transferred or when employees need
to maintain work hours despite an assignment to another job.
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Finally, the Union noted that HCS suggested, for the first time, at the instant
hearing that Pelot should have been paid $11.01 per hour instead of her CNA rate or
her (new hire) HCS housekeeper rate. Apparently, this was based on Account Manager
Meyer’s testimony herein that when SL housekeeping/laundry employees were accepted
as HCS employees in the same positions for HCS as they had previously had at SL
when the subcontract went into effect. In the Union’s view, there is no reason why
Pelot should be denied the benefit of her SL seniority when other SL housekeepers are
paid more based upon their SL seniority. Thus, even if the Arbitrator rejects the
Union’s primary arguments herein, she should order HCS to adjust Pelot’s wage rate to
credit her for her SL seniority.
The Employer:
HCS argued that Pelot voluntarily sought employment as a new hire with HCS;
that this was Pelot’s sole decision and not required by her employer as a means of
trying to provide her 40 hours of work per week. Thus, Article 28.3 and the MOA do
not apply to Pelot’s situation. Rather, Article 15.3 should be applied in Pelot’s case
because she applied for and requested the housekeeper job and at most, HCS argued,
her situation can be described as a voluntary change to a lower classification which
would require HCS to recognize her 5 years of SL seniority for purposes of her HCS
pay.
Here, HCS, a separate entity from NPSS, has no discretion and cannot make
any decisions to require Pelot to work more CNA hours and less housekeeping hours.
HCS urged that the “original intent of the collective bargaining agreement Article 28.3
was to hold an employer accountable for reducing an employees (sic) hours, not to
allow for a part time CNA to voluntarily divide her time between two classifications
simply to get the higher wage rate for doing a job that should pay less” (ER Br. p 1) 4
Therefore, if Article 15.3 is applied, HCS argued that Pelot could receive $11.01 per
hour back to her HCS date of hire, giving her credit for her 5 years’ seniority at SL.
DISCUSSION
Several preliminary observations are necessary here. First, there is no dispute
in this case that HCS is a separate employer from NPSS and that HCS employs only
housekeeping and laundry employees at SL. Second, it is clear that the MOA requires
HCS “to be bound by all terms and conditions of the collective bargaining agreement in
effect between the Union and Strawberry Lane for Housekeeping and Laundry
employees” and that part of this MOA included changing the contractual starting rate
for such housekeeping/laundry work from $10.65 (Jt Exh. 1, p. 28) to $9.20 per hour.
4
HCS submitted no evidence on this point.
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It is also significant that the MOA also states that HCS will “follow the wage scale
outlined in the contract with Strawberry Lane, for all new hires from the date of this
agreement. . .” 5
The Union has argued that, pursuant to Article 28.3, Pelot must be paid her
CNA rate at Strawberry Lane for all hours worked as a Housekeeper for HCS from her
housekeeper hire date forward because HCS has agreed to be bound by the labor
agreement between SL and the Union. The problem with this approach is that the
MOA specifically states that the Housekeeping/laundry start rate (contained in the
contract) is amended by the MOA to $9.20 per hour for “new hires” of HCS. In my
view, the facts herein clearly show that Pelot was interviewed and “hired” as a
Housekeeping employee by the separate entity, HCS, in October, 2006, long after (the
latest execution date of the MOA) November 21, 2005; that Pelot has received separate
HCS paychecks for her housekeeper work; that HCS told Pelot that HCS is a separate
employer from NPSS and no evidence was proffered herein to prove HCS and NPSS
are a single employer; and that Pelot never performed housekeeping/laundry duties at
SL prior to her October, 2006 hire by HCS. In these circumstances, the MOA
indicates that Pelot should have been paid at the $9.20 per hour MOA start rate for the
first six months of her HCS housekeeping employment, through approximately April 9,
2007. 6
Beyond this, the question arises what the proper pay rate for Pelot is for the
period after April 9, 2007. On this point, I note that the MOA specifically states that
HCS is bound to follow the contractual wage scale for new hires, except for those
subject to the $ 9.20 per hour starting rate. In this regard, it is clear that Exhibit “A”
of the labor agreement lists only one pay rate for the single classification of
“Housekeeping/laundry,” a starting rate of $10.65 per hour. Given the specific
language of the MOA which sets the Housekeeping/laundry start rate at $9.20 per hour,
the remaining $10.65 rate listed in Exhibit “A” for such work is the proper rate for the
hours Pelot worked after she completed her first six months of work at $9.20 per hour.
In my view and despite the arguments herein to the contrary, Article 15.3 and
Article 28.3 do not apply to this case. In regard to the former clause, I note that Pelot
never requested a demotion or a transfer to a lower classification and she was not
promoted. Rather, she was hired as a new employee into the sole contractual
classification employed by HCS, Housekeeping/laundry. Thus, Article 15.3 does not
apply to Pelot’s situation by its clear terms.
5
Other exceptions stated in the MOA are not relevant here.
The labor agreement, at Exhibit A, lists the pay rates for all classifications and rates for “start”,
“6 months” and “1 year” for all classifications except Housekeeping/laundry which lists only a $10.65
per hour “start” rate.
6
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Regarding Article 28.3, it is significant that Exhibit “A” lists only one
classification, Housekeeping/laundry, that HCS employs at SL. Therefore, based on
the contract language, Pelot could not have chosen to “perform two (2) jobs at the same
time” for HCS and she could not have decided “to divide” her time “between two
classifications” as an HCS employee. 7 As HCS correctly argued, the record showed
that HCS has no control over Pelot’s CNA work hours and other terms and conditions
of employment for NPSS in her CNA position.
Based upon the above analysis, I issue the following
AWARD 8
Healthcare Services Group, Inc., paid Kim Pelot the correct wage for her first
six months of employment as an HCS Housekeeper under the Memorandum of
Agreement, $9.20 per hour. Therefore, the grievance is denied and dismissed in part
concerning that six month time period.
Healthcare Services Group, Inc., failed to give Kim Pelot the correct wage for
the housekeeping duties she performed after her first six months of HCS employment.
Therefore, the grievance is sustained regarding this time period and forward. HCS is
ordered to make Pelot whole by paying her the difference between $ 10.65 per hour
and the pay rate it paid her beginning six months after her hire by HCS to the date of
this Award, and HCS is ordered to pay Pelot according to the MOA and SL labor
agreement thereafter.
Dated in Oshkosh, Wisconsin, this 10th day of September, 2007.
Sharon A. Gallagher /s/
Sharon A. Gallagher, Arbitrator
The Union argued that the prior treatment of Amanda Calhoun (a CNA who was hired as an HCS
housekeeper and paid her CNA rate for all HCS housekeeper hours) should support its case. I disagree.
Calhoun’s situation was informally settled by Schauer and would be insufficient standing alone, to prove
a past practice in favor of the Union.
7
I will retain jurisdiction of this case, for purposes of the remedy only, for 60 days after the date of this
Award.
8
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